Intercreditor disputes in bankruptcy are common.  Typically, however, they center around predictable disagreements between senior or junior classes of creditors such as valuation battles or lien perfection challenges.  A recent decision in the Delaware chapter 11 case of TPC Group
Continue Reading No Honor Among Creditors: Delaware Judge Issues Important Ruling On “Uptier” Transaction

In March, the U.S. Court of Appeals for the Second Circuit joined a growing majority of courts with Springfield Hospital, Inc. v. Administrator for the U.S. SBA, holding that no matter how forgiving its terms, a CARES Act’s Paycheck
Continue Reading Second Circuit Split Resolved: No PPP Loans for Debtors in Bankruptcy

For now, the Subchapter V debt limit is back down to $2.7 million.  Overshadowed by the contentious confirmation hearings for historic Supreme Court nominee Ketanji Brown Jackson, the Senate Judiciary Committee failed to act on proposed legislation that would have
Continue Reading Preoccupied Congress Fails to Act, Sending Debt Limit Back Down to $2.7 Million and Reducing Availability of Subchapter V Protection for Small Businesses

A paper to be published soon in the University of Southern California Law Review, “The Rise of Bankruptcy Directors,” is sharply critical of the increased use of supposedly “independent directors” by distressed companies, often in anticipation of filing
Continue Reading Does a Declaration of Independence Suffice? A New Study Raises Significant Questions About “Independent Directors” of Large Distressed Companies

The allowance of postpetition interest in solvent debtor chapter 11 cases has become an important issue in recent years for corporate issuers, bondholders and other creditors.  This post will examine a recent decision in the Hertz case by Judge Mary
Continue Reading Driving While Unimpaired – Delaware Judge Issues Important Ruling in Hertz Chapter 11 Case on Allowance of Make-Whole Premiums, Treatment of Unimpaired Creditors, and Postpetition Interest (Part 2)

The treatment of make-whole premiums in solvent debtor chapter 11 cases has become an important issue in recent years for corporate issuers and bondholders.  This post will examine a recent decision in the Hertz case by Judge Mary Walrath of
Continue Reading Driving While Unimpaired – Delaware Judge Issues Important Ruling in Hertz Chapter 11 Case on Allowance of Make-Whole Premiums, Treatment of Unimpaired Creditors, and Postpetition Interest (Part 1)

Two recent judicial decisions, Sanchez Energy and Tribune Media, highlight the challenges faced by indenture trustees and their professionals in chapter 11 cases where there are no recoveries to noteholders.  Federal law requires that public debt be issued under
Continue Reading Two Important Rulings on Payment of Indenture Trustee Fees in Chapter 11 Cases

A recent decision by Judge Jed Rakoff of the Southern District of New York highlights the risks faced by directors and officers of companies in financial distress who fail to undertake properly their duties to the company and its stakeholders.
Continue Reading If the Shoe Fits . . . . Defendants in Nine West D&O Litigation Fail to Convince Judge to Dismiss Claims for Breach of Fiduciary Duty and Recovery of Fraudulent Transfers